According to the old saying, “possession is nine-tenths of the law.” Perhaps that’s true in some context, but in a Pennsylvania divorce decision that was recently published by the Superior Court, possession of a marital home during separation did not dictate the outcome.  In Markle v. Markle, No. 968 WDA 2014 (June 22, 2015)(non-precedential), the marital home was occupied by the wife during the separation period.  During the master’s hearing on equitable distribution, the husband argued that he had invested his time in repairing and improving the home.  Perhaps more persuasively, he testified that he would have the financial ability to refinance the mortgage loan in his own name, relieving the wife of any liability.  The master awarded the marital residence to husband instead of wife, who also wanted the home.  The trial court adopted this portion of the master’s recommendation.

On appeal, the wife argued that the home should have been awarded to her because of special needs.  The Superior Court reviewed case law in which special needs were considered, such as a spouse who had installed access ramps to accommodate a wheelchair, or a spouse who operated a child care business in the home.  Yet, the Superior Court dismissed the wife’s appeal in this case, finding that she did not present evidence of special needs. Wife had lived in the home with the children, resided three doors down from her ailing father, and spotted the home during her childhood, but these were not compelling reasons to overturn the court’s decision to award the house to the husband.  Notably, Wife had testified at an earlier stage of the divorce that she was ambivalent about keeping the house, and might be willing to sell it.